SECOND SECTION

CASE OF ÖZÇAYIR AND ÇİÇEK v. TURKEY

(Application no. 1962/07)

JUDGMENT

STRASBOURG

12 December 2017

This judgment is final but it may be subject to editorial revision.

In the case of Özçayır and Çiçek v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
	Ledi Bianku, President,
	Valeriu Griţco,
	Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having deliberated in private on 21 November 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 1962/07) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Turkish nationals Ms Medine Özçayır and Mr Abdulkadir Çiçek (“the applicants”), on 19 December 2006.
2.  The applicants were represented before the Court by Mr M. Karaman, a lawyer practising in Diyarbakır. The Turkish Government (“the Government”) were represented by their Agent,
3.  On 30 August 2010 the application was communicated to the Government.
THE FACTS
Article I.	I.  THE CIRCUMSTANCES OF THE CASE
4.  The applicants were born in 1982 and 1981 respectively.
5.  On 22 April 2006 upon receipt of intelligence reports that the youth branch of the PKK would be holding a meeting in the premises of a cooperative, the police officers, under the orders of the magistrates’ court, conducted a search in the premises of the co-operative of which the applicants were members. The police seized several documents and CDs that contained propaganda materials related to the youth branch of the PKK.
6.  On the same day the applicants were taken into custody on suspicion of being members of a terrorist organisation.
7.  On 24 April 2006 the Urfa Magistrates’ Court ordered the applicants’ detention on remand.
8.  On 27 April 2006 and 28 April 2006, respectively, the applicants filed objections against their pre-trial detention. The courts rejected their request on the basis of the case-file, without holding a hearing.
9.  During the pre-trial stage, the magistrates’ court continued to examine, by virtue of Article 108 of Law no. 5271, the necessity of applicants’ continued detention every thirty days on the basis of the case file, without holding an oral hearing. The applicants also filed objections against their continued pre-trial detention, namely on 15 June, 12 July, 17 July, 1 August and 17 October 2006. All these objections were examined on the basis of the case file and were rejected by the domestic courts.
10.  On 10 October 2006 the Diyarbakır Public Prosecutor filed an indictment with the Diyarbakır Assize Court charging the applicants, along with twenty three other persons, with aiding and abetting a terrorist organisation under Article 314 of the Criminal Code (Law no. 5237).
11.  On 30 November 2006 the Diyarbakır Assize Court held its first hearing and the applicants appeared before the court. On the same day, the applicants were released pending trial.
12.  On 4 November 2008 the Diyarbakır Assize Court acquitted the applicants of the charges against them. In the absence of an appeal, this judgment became final on 12 November 2008.
THE LAW
Article II.	I.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
13.  The applicants alleged under Article 5 § 3 of the Convention that the length of their detention on remand had been unreasonably long.
14.  The Government argued that the applicants had failed to exhaust domestic remedies, referring to the possibility of claiming compensation for unlawful detention under Article 141 of the Code on Criminal Procedure (“CCP”).
15.  The Court observes that the domestic remedy in application of Article 141 of the CCP with regard to length of detention on remand was examined in the case of Şefik Demir v. Turkey, ((dec.), no. 51770/07, §§ 17‑35, 16 October 2012), where the Court held that that remedy had to be exhausted by the applicants whose convictions became final.
16.  In the instant case, the Court notes that the applicants’ acquittal decision became final on 12 November 2008. From that date onwards the applicants were entitled to seek compensation under Article 141 of the CPP (see Demir, cited above, § 35), but failed to do so.
17.  The Court reiterates that the assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with the Court. However, as the Court has held on many occasions, this rule is subject to exceptions, which may be justified by the particular circumstances of each case (see İçyer v. Turkey (dec.), no. 18888/02, § 72, ECHR 2006‑I). The Court has previously departed from this rule in cases concerning the above-mentioned remedy in respect of the length of detention, which became applicable after the final decision on the criminal proceedings (see also, among others, Tutal and Others v. Turkey (dec.), 11929/12, 28 January 2014). The Court takes the view that the exception should be applied in the present case as well.
18.  As a result, taking into account the Government’s objection, the Court concludes that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
Article III.	II.  ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
19.  Relying on Article 5 §§ 3 and 4 of the Convention the applicants complained that they did not have an effective remedy by which to challenge the lawfulness of their continued detention.
20.  The Government contested the claim.
21.  The Court considers that in the circumstances of the present application it is more appropriate to deal with the applicant’s complaints under Article 5 § 4 of the Convention.
Section 3.01	A.  Admissibility
22.  The Government maintained that the applicants had not exhausted domestic remedies, as required by Article 35 § 1 of the Convention.
23.  The Court observes that it has already examined and rejected a similar objection in the case of Karaosmanoğlu and Özden v. Turkey (no. 4807/08, §§ 39-45, 17 June 2014). It sees no reason to depart from that finding.
24.  The Court notes that this part of the application is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
Section 3.02	B.  Merits
25.  In the present case, the applicants were placed in detention on remand on 24 April 2006. They were only brought before a judge to examine the lawfulness of their detention on 30 November 2006, namely six months after their detention.
26.  The Court notes that it has already examined a similar grievance in the cases of Erişen and Others v. Turkey (no. 7067/06, § 53, 3 April 2012), and Altınok v. Turkey, (no. 31610/08, §§ 54-55, 29 November 2011) and found a violation of Article 5 § 4 in both cases. It has examined the present case and finds no particular circumstances which would require it to depart from its findings in the aforementioned judgments.
27.  There has therefore been a violation of Article 5 § 4 of the Convention under this head.
Article IV.	III.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
28.  Lastly, the applicants complained under Article 5 § 1 of the Convention about the unlawfulness of their arrest and pre-trial detention. They also maintained under Article 6 § 1 of the Convention that the criminal proceedings against them, in particular the pre-trial stage, had not been completed within a reasonable time. Moreover, relying on Article 11 of the Convention they further alleged that they were detained on account of their membership to a co-operative.
29.  In the light of the material in its possession and in so far as the matters complained of are within its competence, the Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with the Article 35 § 3 and 4 of the Convention.
Article V.	IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
30.  The applicants did not submit a claim for just satisfaction within the time-limit set by the Court. Accordingly, the Court considers that there is no call to award them any sum on that account.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1.  Declares the complaint concerning lack of appearance before a judge to challenge the lawfulness of their pre-trial detention admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 5 § 4 of the Convention on account of the lack of opportunity to appear before a court to challenge the lawfulness of detention.
Done in English, and notified in writing on 12 December 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Hasan Bakırcı	Ledi Bianku
	Deputy Registrar	President